United States v. Coleman

Case: 09-30545 Document: 00511143724 Page: 1 Date Filed: 06/16/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 16, 2010

No. 09-30545 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellee
v.

JAMES RAY COLEMAN

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Louisiana

Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.
CARL E. STEWART, Circuit Judge:
James Ray Coleman was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He sought dismissal on the ground
that his underlying felony conviction was not a valid predicate offense. The
underlying felony conviction was pursuant to 18 U.S.C. § 371 for conspiracy to
pirate encrypted satellite signals and to infringe a copyright. Coleman alleged
that the conviction should fall within the 18 U.S.C. § 921(a)(20)(A) exception to
§ 922(g)(1) for offenses relating to the regulation of business practices. The
district court ruled that Coleman’s prior conviction did not fall within the §
921(a)(20)(A) exception and that the exception was not unconstitutionally vague,
and denied the motion to dismiss. Coleman then conditionally pleaded guilty,
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and now appeals the denial of the motion to dismiss. He also appeals the
assignment of a four-point increase to his offense level for “possession of a
firearm in connection with another felony offense” for stalking under L A. R EV .
S TAT. § 14:40.2. We AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual Background
Frankie Manley called 911 to report that James Ray Coleman was on his
way to her residence to kill her, her adult granddaughter, and himself. Deputies
from the East Carroll Parish Sheriff’s Office responded to the call and, upon
arrival, found a visibly intoxicated Coleman at his shop across the street from
the Manley residence. When asked if he “had anything on him,” it was
discovered that he had a pistol in his waistband.
Manley explained to the deputies that Coleman had been living at her
residence, but that she had asked him to leave three days earlier because of his
drinking problem. Manley told officers that Coleman called her several times a
day begging her to allow him to return and threatening her if she did not. He did
this for three days straight, and became upset each time Manley refused to allow
him to return. He became belligerent and threatened her and her
granddaughter. Manley believed her life was in danger and was so upset that
she could not write a statement. Coleman was arrested for felonious stalking
under Louisiana law.
B. Procedural History
Coleman was charged with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Coleman filed a Motion to Dismiss the
indictment, alleging that the underlying felony conviction was not a valid
predicate offense because it fell within the 18 U.S.C. § 921(a)(20)(A) exception
to § 922(g)(1) for offenses relating to the regulation of business practices, and
that Coleman was therefore not prohibited from possessing a firearm under §

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922(g)(1). Coleman’s underlying felony conviction was a 1994 conviction under
18 U.S.C. § 371 for conspiracy to manufacture or distribute equipment for
decrypting satellite cable signals in violation of the Communications Act of 1934,
47 U.S.C. § 605(e)(4), and to willfully infringe a copyright in violation of the
Criminal Copyright Infringement Statute, 17 U.S.C. § 506(A). See United States
v. Coleman, No. 1:92-10016-3 (W.D. La. Feb. 4, 2009).
The district court denied the Motion to Dismiss. Relying on Dreher v.
United States, 115 F.3d 330, 332 (5th Cir. 1997), the district court found that the
offense of conspiracy pursuant to § 371 is not excepted from the scope of the felon
in possession statute by § 921(a)(20)(A). The district court also stated that even
if it were to consider the target offenses of the conspiracy, Coleman’s prior
conviction would still qualify as a predicate felony for purposes of the firearm
statute because theft of copyright-protected satellite programming was not an
unfair business practice. In addition, the court rejected Coleman’s argument that
the statute was unconstitutionally vague. Coleman then entered a conditional
plea of guilty, reserving his right to appeal the denial of his motion to dismiss
the indictment.
At sentencing, the Presentence Investigation Report (PSR) calculated
Coleman’s offense level at 15 with a criminal history category of I, yielding a
Guidelines sentencing range of 18 to 24 months. After hearing testimony from
an East Carroll Parish Sheriff’s Deputy who participated in Coleman’s arrest,
the district court concluded that Coleman had possessed the firearm in
connection with another felony offense—the Louisiana offense of felonious
stalking—and increased his offense level by four. Coleman objected to this
increase and the court overruled his objection. The court then imposed a
21-month term of imprisonment to be followed by a three-year term of
supervised release. Coleman did not object to the reasonableness of his sentence.

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II. DISCUSSION
A. Evaluating a Predicate Offense under the Business Practices Exception
Coleman first asserts that the district court erred by denying his Motion
to Dismiss the indictment. He claims that his § 371 conviction for conspiracy to
violate § 605(e)(4) and § 506(a) falls within the “business practices exception”
created by § 921(a)(20)(A) for offenses “pertaining to antitrust violations, unfair
trade practices, restraint of trade, or other similar offenses relating to the
regulation of business practices.” Because Coleman’s motion to dismiss the
indictment was based on the interpretation of a federal statute, this court
reviews the denial of the motion de novo. See United States v. Perez-Macias, 335
F.3d 421, 425 (5th Cir. 2003).
The “felon in possession of a firearm” statute, 18 U.S.C. § 922(g)(1), makes
it a crime “for any person who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year . . .” to possess a
firearm or ammunition which has traveled in interstate or foreign commerce.
The “business practices exception” to § 922(g)(1), set out in 18 U.S.C. §
921(a)(20), excludes from the definition of a “crime punishable by imprisonment
for a term exceeding one year . . . any federal or state offenses pertaining to
antitrust violations, unfair trade practices, restraints of trade, or other similar
offenses relating to the regulation of business practices . . . .” Thus, a felon in
possession of a firearm who has been convicted of one of the types of violations
itemized in § 921(a)(20)(A) cannot be found guilty under § 922(g)(1) on the basis
of that conviction.
In Dreher v. United States, this court applied a framework for evaluating
whether a prior felony conviction falls within the § 921(a)(20)(A) business
practices exception. 115 F.3d at 330. The defendant had been convicted of
conspiracy to commit mail fraud and mail fraud in violation of 18 U.S.C. §§ 371,
1341 and 1342. Id. at 331. He petitioned for a declaratory judgment that he was

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not a convicted felon under § 922(g)(1) because the predicate offenses fell within
the business practices exception. Id. The defendant argued that the court should
evaluate the conduct underlying the convictions— billing for services not
rendered. The Dreher court, however, reasoned that “the plain meaning of the
term ‘offenses’ in the context of the statute is the charged violation of law, not
the facts underlying the violation of law.” Id. at 332. The court evaluated
whether the elements that the Government was required to prove under 18
U.S.C. §§ 371 and 1341 depended “on whether they have an effect upon
competition.”1 Id. at 332-33. It analyzed the statutes as follows:
The “offenses” (or violations of law) of which Dreher was convicted
are conspiracy to commit mail fraud and mail fraud, pursuant to 18
U.S.C. §§ 371, 1341. To prove conspiracy under § 371, the
government must show: (1) an agreement between two or more
persons to commit an unlawful act and (2) an overt act by one of the
conspirators in furtherance of the agreement. See United States v.
Schmick, 904 F.2d 936, 941 (5th Cir. 1990). To convict under § 1341,
the government must prove (1) a scheme to defraud; (2) intent to
defraud; and (3) use of the mails in furtherance of the scheme. See
United States v. Nguyen, 28 F.3d 477, 481 (5th Cir. 1994).
Id. at 332. The court then held that “[b]ecause violations of §§ 371 & 1341 in no
way depend on whether they have an effect upon competition, they are not

1
Like this court in Dreher, other circuits have similarly adopted an elements test to
determine whether a predicate offense has an effect on competition or on consumers for
purposes of determining the applicability of § 921(a)(20). See United States v. Schultz, 586 F.3d
526, 530 (7th Cir. 2009) (holding that in order for an offense to fall within § 921(a)(20)(A)’s
exception, the Government must “have been required to prove, as an element of the predicate
offense, that competition or consumers were affected; possible incidental effects are not
relevant.”); United States v. Stanko, 491 F.3d 408, 421 (8th Cir. 2007) (holding that a prior
conviction under the Federal Meat Inspection Act (FMIA) was not excepted by § 921(a)(20)(A)
because “none of the provisions of the FMIA require the Government to prove an effect upon
competition or commerce as an element of the offense.”); United States v. Meldish, 722 F.2d
26, 28 (2d Cir. 1983) (refusing to apply the business practices exception where the defendant’s
prior conviction “in no way depends upon whether it has an effect on competition or
consumers.”).

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‘offenses’ that are excluded from the § 921(a)(20) definition of ‘crimes punishable
by imprisonment for a term exceeding one year.’” Id. at 333.
The defendant in Dreher had been convicted of both conspiracy to commit
mail fraud under § 371 and mail fraud under § 1341. Id. at 332. Both or either
of those convictions could have potentially functioned as predicate offenses under
§ 922(g)(1). Consequently, the court’s evaluation of the elements under both §
371 and § 1341 does not necessarily clarify whether, in cases such as the present
one, the court must evaluate the elements of the offense underlying a conspiracy
conviction where there is no conviction for the underlying offense. Additionally,
although Dreher specifically rejected any examination of the facts underlying the
charged crime, it did not clearly address whether the court might examine the
violation of the law that is the target of the charged conspiracy.
The Government asserts that, consistent with the categorical approach of
Taylor v. United States, 495 U.S. 575 (1990), the district court properly
evaluated only the elements of the charged offense for the prior conviction to
determine whether an offense falls within the business practices exception. The
Government claims that the offenses that were the target of the conspiracy are
merely underlying facts and are irrelevant to Dreher’s elements test. If we were
to apply the approach advocated by the Government, we would not consider the
target offenses of the conspiracy conviction, but would analyze only the elements
of conspiracy pursuant to § 371. This reasoning would require the conclusion
that any conspiracy conviction pursuant to § 371 would qualify as a predicate
offense under § 922(g)(1).
We reject such a conclusion. According to the Government’s position, a
conviction under § 371 invariably qualifies as a predicate offense under §
922(g)(1), even where the “unlawful act” that was the object of the conspiracy is
one of the offenses listed in § 921(a)(20)(A). But, for example, given that the
language of § 921(a)(20)(A) exempts “any Federal or State offenses pertaining to

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antitrust violations,” conspiracy to commit an antitrust violation would be an
offense “pertaining to antitrust violations.” (emphasis added).
Moreover, a conviction for conspiracy under § 371 requires that the
Government show: (1) an agreement between two or more persons to pursue an
unlawful objective; (2) the defendant’s knowledge of the unlawful objective and
voluntary agreement to join the conspiracy; and (3) an overt act by one or more
of the members of the conspiracy in furtherance of the objective of the
conspiracy. United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001) (citing
United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000)). Thus, § 371 requires
that the Government prove as an element that the conspiracy was targeted at
a specific offense or “unlawful objective.”2 See United States v. White, 571 F.3d
365, 372 (4th Cir. 2009) (“[t]he Conspiracy Offense cannot be divorced from its
. . . objective”). Consequently, if the targeted offense requires the Government
to prove an effect upon competition as an element of the offense, then the
conspiracy conviction falls within the business practices exception.
We therefore conclude that the district court erred by evaluating only §
371; the analysis under § 921(a)(20)(A) also requires an examination of the
elements of the target offense of the conspiracy conviction. As the district court
correctly held in the alternative, however, even considering the target offenses

2
As described in the Fifth Circuit’s pattern jury instructions:
Title 18, United States Code, Section 371, makes it a crime for anyone to
conspire with someone else to commit an offense against the laws of the United
States. . . . For you to find the defendant guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt: First: That the defendant and at least one other person made
an agreement to commit the crime of _______ (describe) as charged in the
indictment; Second: That the defendant knew the unlawful purpose of the
agreement and joined in it willfully, that is, with the intent to further the
unlawful purpose; and Third: That one of the conspirators during the existence
of the conspiracy knowingly committed at least one of the overt acts described
in the indictment, in order to accomplish some object or purpose of the
conspiracy.
FIFTH CIRCUIT CRIM INAL PATTERN JURY INSTRUCTIONS (2001) § 2.20.

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of the conspiracy, Coleman’s prior offense qualifies as a predicate felony for
purposes of § 922(g)(1). The first offense3 charged as the target of Coleman’s
conspiracy conviction was 47 U.S.C. § 605(e)(4), the Communications Act of
1934. To prove a violation of § 605(e)(4), the Government must show that the
defendant: (1) manufactured, assembled, modified, imported, exported, sold, or
distributed; (2) any electronic mechanical, or other device or equipment that was
primarily of assistance in the unauthorized decryption of satellite cable
programming or direct-to-home satellite services; (3) while knowing or having
reason to know that the device or equipment was primarily of assistance in the
unauthorized decryption of satellite cable programming or direct-to-home
satellite services. These elements do not require any proof of “an effect upon
competition.” Dreher, 115 F.3d at 332.
Coleman argues that the legislative history of the Communications Act
indicates that the purpose of § 605 is to protect the competitive nature of the
satellite industry and prohibit unfair trade practices. Courts have looked to the
legislative history of a statute in order to determine whether it falls within the
business practices exception. See, e.g., Stanko, 491 F.3d at 416-17 (“[T]he
statement of congressional findings . . . includes concerns about the effects of
unwholesome meat on competition and markets. These concerns, however, are
subordinate to the FMIA’s primary public-health purpose. . . ”); United States v.
McLemore, 792 F. Supp. 96, 98 (S.D. Ala. 1992) (“[O]dometer rollback is
prohibited by 15 U.S.C. §§ 1984 and 1990c(a) as an unfair trade practice exactly
because of its ‘effect on competition and consumers.’ This interpretation is

3
We evaluate both the alleged target offenses of the conspiracy conviction because it
is unclear from the record which of the two target offenses (or both) provided the basis for the
conspiracy conviction. Where there is only one conspiracy count and the finder of fact was
required to find that the conspiracy has as its object each of the target offenses, then it would
presumably be sufficient to deny the exception if there was at least one target offense that did
not meet it. However, if the conviction could have been based on either target offense, and we
cannot discern which one it was based on, then both must be evaluated.

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supported by the legislative history of the Truth in Mileage Act of 1986.”). But
legislative history remains secondary to an examination of the elements of the
statute. See Stanko, 491 F.3d at 416-17 (“[M]ore significantly, none of the
provisions of the FMIA require the Government to prove an effect on competition
or consumers as an element of the offense.”). Regardless, even taking into
account legislative history, this court has stated that § 605(e)(4)’s “purpose is to
proscribe the piracy of programming signals, whether they be for commercial or
personal use.” United States v. Harrell, 983 F.2d 36, 39 (5th Cir. 1993).
The other offense charged as the target of Coleman’s conspiracy conviction
was 17 U.S.C. § 506(A), the Criminal Copyright Infringement Statute. To prove
a violation of § 506(A), the Government must show that the defendant: (1)
willfully infringed; (2) a valid copyright; (3) for commercial advantage, for
private financial gain, or in a manner otherwise prohibited by the statute. See
17 U.S.C. § 506(A). For the conviction to fall within the business practices
exception, the Government must “have been required to prove, as an element of
the predicate offense, that competition . . . [was] affected; possible incidental
effects are not relevant.” Schultz, 586 F.3d at 530; see also Dreher, 115 F.3d at
332. Under § 506(A), the Government would not have been required to prove any
effect upon competition.
We hold that in evaluating whether a § 371 conspiracy conviction falls
within the business practices exception, courts must evaluate the elements of §
371 and the target offenses of the conspiracy. Here, the conspiracy conviction for
the target offenses of § 605(e)(4) and § 506(A) does not fall within the business
practices exception. Coleman’s prior conspiracy conviction is therefore a
predicate offense for purposes of § 922(g)(1), and we affirm the conviction.
B. Constitutionality of the Business Practices Exception
In his second point of error, Coleman asserts that the phrase in §
921(a)(20) excluding as predicate offenses “any . . . offenses pertaining to

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antitrust violations, unfair trade practices, restraints of trade, or other similar
offense relating to the regulation of business practices” is unconstitutionally
vague. Whether a statute is unconstitutionally vague is a question of law, which
this court reviews de novo. United States v. Rudzavice, 586 F.3d 310, 315 (5th
Cir. 2009) (citing United States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999)).
The vagueness doctrine “bars enforcement of ‘a statute which either
forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application.’” United States v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connally
v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). A principal element of the
vagueness doctrine is “the requirement that a legislature establish minimal
guidelines to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352, 357
(1983) (internal quotation marks and citation omitted). The touchstone of the
analysis, however, “is whether the statute, either standing alone or as construed,
made it reasonably clear at the relevant time that the defendant’s conduct was
criminal.” Lanier, 520 U.S. at 267.
Addressing § 921(a)(20), the dissent in United States v. Stanko stated that
it “is a criminal statute that is impermissibly vague.” 491 F.3d at 420 (Bright,
J., dissenting) (citing Kolender, 461 U.S. at 357). The Stanko dissent explained
that to apply the exemption for “similar offenses” under § 921(a)(20), courts must
determine which business offenses are similar to antitrust violations, unfair
trade practices, and restraints of trade. Id. at 420-21. It reasoned that “[t]he
complete absence of Congressional guidance and scarcity of federal precedent
leaves the meaning of the similar offenses clause unconstitutionally vague, and
thus the class of individuals who may possess a firearm without the threat of
prosecution is in part undefined.” Id. at 421.
Rejecting the conclusion that § 921(a)(20) is unconstitutionally vague, the
Stanko majority explained that “Congress used the comparative term ‘similar’

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to modify ‘offenses,’ rather than saying ‘any other offenses’ or simply ‘other
offenses.’” Id. at 414. “The term ‘similar’ indicates an intent to limit the business
practices clause’s reach to offenses which are ‘comparable’ or ‘nearly
corresponding’ to the enumerated offenses.” Id. (citing W EBSTER’S T HIRD N EW
I NTERNATIONAL D ICTIONARY 2120 (2002)). Because “the general phrase ‘or other
similar offenses relating to the regulation of business practices’ refers back for
its meaning to the three types of offenses Congress specifically enumerated,” the
court concluded that “the plain meaning of the statute indicates Congress’s
intent to limit the offenses that fall within the § 921(a)(20)(A) exclusion to those
pertaining to antitrust violations, unfair trade practices, restraints of trade, or
offenses similar to them.” Id.
The Seventh Circuit in United States v. Schultz also rejected a vagueness
challenge to the “similar offenses” clause of § 921(a)(20). 586 F.3d at 531. The
Schultz court explained that:
According to its terms, § 921(a)(20)(A) excludes those “[f]ederal or
state offenses pertaining to antitrust violations, unfair trade
practices, restraints of trade, or other similar offenses relating to
the regulation of business practices.” In the final phrase, the word
“similar” limits the term “offenses,” so that it refers back to the
three enumerated offenses, and is further limited by “relating to the
regulation of business practices.” Accordingly, an ordinary
individual would have notice that the § 921(a)(20)(A) exception
applies only if he or she committed an enumerated or similar offense
related to the regulation of business practices.
Id.
Consistent with the reasoning of Stanko and Schultz, the business
practices exception is not unconstitutionally vague because it requires that the
excluded offenses be a specific type of business offense or similar to such specific
offenses relating to the regulation of business practices. “Antitrust law” is
“designed to protect trade and commerce from restraints, monopolies, price
fixing, and price discrimination.” B LACK’S L AW D ICTIONARY, 104 (8th ed. 2004).

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While it is “almost impossible to formulate an all inclusive definition of ‘unfair
trade practice’ . . . implicit in the term itself is the requirement that the practice
adversely affect either competitors or consumers . . . .” Stanko, 491 F.3d at 416.
Likewise, “restraint of trade” has a definite meaning at common law and
includes “contracts for the restriction or suppression of competition in the
market, agreements to fix prices, divide marketing territories, apportion
customers, restrict production and the like practices, which tend to raise prices
or otherwise take from buyers or consumers the advantages which accrue to
them from free competition in the market.” Apex Hosiery Co. v. Leader, 310 U.S.
469, 497 (1940).
These exempted offenses demonstrate that Congress intended to exclude
under § 921(a)(20)(A) only commercial crimes violating statutes designed to
prevent “an adverse economic effect on competition or consumers.” Dreher, 115
F.3d at 332. The elements test used to determine whether an offense falls within
the business practices exclusion is specific and overall gives fair warning as to
which offenses meet the definition of a “crime punishable by imprisonment for
a term exceeding one year” and which are excluded pursuant to the exception in
§ 921(a)(20)(A). We therefore affirm the district court’s conclusion that §
921(a)(20)(A) is not unconstitutionally vague.
C. U.S.S.G. § 2K2.1(b)(6) Enhancement
Finally, Coleman argues that the district court erred in assigning a four-
point increase to the offense level for “possession of a firearm in connection with
another felony offense.” The felony offense to which the court referred was
stalking under L A. R EV. S TAT. § 14:40.2, and Coleman claims there is insufficient
evidence in the record to support a finding that he possessed a firearm while
making any type of threat against the victim.
This court reviews the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.

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Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009). In determining whether a
Guidelines enhancement applies, the district court is allowed to draw reasonable
inferences from the facts, and these inferences are fact findings reviewed for
clear error. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). The
district court’s determination of the relationship between the firearm and
another offense is a factual finding. United States v. Condren, 18 F.3d 1190,
1199-1200 (5th Cir. 1994). “A factual finding is clearly erroneous when the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. Cooper, 274
F.3d 230, 238 (5th Cir. 2001) (internal quotation marks and citation omitted). A
factual finding is not clearly erroneous if it is plausible in light of the record as
a whole. Id.
U.S.S.G. § 2K2.1(b)(6) provides that “[i]f the defendant used or possessed
any firearm or ammunition in connection with another felony offense . . .
increase by four levels.” The commentary to § 2K2.1(b)(6) states that the
enhancement applies where the firearm “facilitated, or had the potential of
facilitating,” the other felony offense. U.S.S.G. § 2K2.1(b)(6), cmt. n.14. Thus, to
obtain an enhancement under § 2K2.1(b)(6), the Government must establish by
a preponderance of the evidence “that the firearm ‘facilitated, or had the
potential of facilitating’ another felony offense and that the defendant used or
possessed the firearm in connection with that offense.” United States v.
Anderson, 559 F.3d 348, 357 (5th Cir. 2009).
L A. R EV. S TAT. 14:40.2(A) provides as follows:
Stalking is the intentional and repeated following or harassing of
another person that would cause a reasonable person to feel
alarmed or to suffer emotional distress. Stalking shall include, but
not be limited to the intentional and repeated uninvited presence of
the perpetrator at another person’s home . . . or any place which
would cause a reasonable person to be alarmed, or to suffer
emotional distress as a result of verbal or behaviorally implied

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threats of death, bodily injury, sexual assault, kidnapping, or any
other statutory criminal act to himself or any member of his family
or any person with whom he is acquainted.
Stalking is a felony offense if the defendant “is found . . . to have placed the
victim . . . in fear of death or bodily injury by the actual use of or the defendant’s
having in his possession during the instances which make up the crime of
stalking a dangerous weapon or is found . . . to have placed the victim in
reasonable fear of death or bodily injury.” L A. R EV. S TAT. § 14:40.2(B)(2)(a).
Louisiana defines “harassing” as “the repeated pattern of verbal communications
or nonverbal behavior without invitation which includes but is not limited to
making telephone calls, transmitting electronic mail, [or] sending messages via
a third party. . . .” L A. R EV. S TAT. § 14:40.2(C)(1).
At sentencing, East Carroll Parish Sheriff’s Deputy Brandon Wiltcher,
who was present at the time of Coleman’s arrest, testified that Manley made two
911 calls to request assistance and protection from Coleman. The first 911 call
informed authorities that Coleman had stated that he was on his way to
Manley’s residence to kill her, her granddaughter, and himself. She called a
second time shortly thereafter to report that Coleman was attempting to enter
the residence and was making verbal threats to kill Manley and her
granddaughter. When deputies arrived on the scene, Coleman was across the
street from the Manley residence and armed with a pistol carried in his
waistband. Deputy Wiltcher also testified that for three days Coleman had called
Manley’s home several times a day, making threats against her and her
granddaughter.4

4
In the sentencing context, a “district court may consider any relevant evidence
without regard to its admissibility under the rules of evidence applicable at trial, provided that
the information has sufficient indicia of reliability to support its probable accuracy.” United
States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (internal quotation marks and citation omitted).

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Coleman’s contention that he did not possess the gun “in connection with”
the felony stalking offense for purposes of § 2K2.1(b)(6) is without merit.
Regardless, at a minimum possession of the gun “had the potential of
facilitating” the felony stalking offense. See § 2K2.1(b)(6), cmt. n.14. Coleman
correctly notes that the deputies did not see him in possession of a firearm at the
time he made the threats to the Manleys that day and or on the previous days.
There was likewise no testimony that either of the victims saw him with a
weapon when he threatened them. However, the deputies arrived soon after the
second 911 call and found Coleman immediately across the street from the
Manley residence and armed. As the Government argues, it is logical to infer
and quite plausible that Coleman had the firearm with him only moments before
his arrest when he was attempting to enter the Manleys’ residence. Further,
Coleman had previously threatened to kill the Manleys and himself.
It is entirely reasonable to infer that Coleman intended to accomplish
these threats with the firearm in his possession at the time that he was arrested.
The district court’s finding of fact that Coleman possessed the firearm in
connection with the commission of another felony is therefore not clearly
erroneous and we affirm the four-point increase to Coleman’s offense level.
III. CONCLUSION
For the reasons discussed, we AFFIRM Coleman’s conviction and sentence.

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